Civil and Human Rights

Can Chief Justice John Roberts keep his resolutions?

The New Year always brings new resolutions. But for U.S. Supreme Court Chief Justice John Roberts, the New Year will bring a test of whether he can keep the resolutions he made when he was nominated to the high court. How he handles that test will help determine the legacy he leaves as chief justice.


When Roberts was nominated to be chief justice, he assured members of the Senate and the public that he would respect the court’s precedent, the technical term for its prior decisions. “The Founders,” he explained, “appreciated the role of precedent in promoting evenhandedness, predictability, stability, the appearance of integrity in the judicial process.”


He also observed that “it is a jolt to the legal system when you overrule a precedent,” and he therefore cautioned that justices should not overrule a precedent simply because they “may think the prior decision was wrongly decided.”


The beginning of the New Year will bring a huge test of whether Roberts can keep his resolution to respect the court’s prior decisions.


On Jan. 11, the court will be hearing oral argument in Friedrichs v. California Teachers Association, a case in which the court will consider whether public sector unions may ask employees who aren’t members, but who benefit from the wages and benefits the union negotiates, to chip in for the costs of those negotiations.


It makes total sense that they should; as even Justice Antonin Scalia has recognized, “Mandatory dues allow the cost of (the union’s bargaining) to be fairly distributed; they compensate the union for benefits which ‘necessarily’ — that is, by law — accrue to the nonmembers.”


Moreover, nothing in the text or history of the First Amendment (the basis for the challenge here) prohibits unions from charging these fees.

Those reasons alone should be sufficient for Roberts and the other justices to support the union in this case. But there’s another big reason, as well: the court already has said these fees are lawful.


In a nearly 40-year-old case, Abood v. Detroit Board of Education, the court explained that “important government interests” justified the fees and held that there was no constitutional prohibition on them.


Since then, employers and unions alike have relied on Abood. As Justice Elena Kagan recently explained, “governments and unions across the country have entered into thousands of contracts involving millions of employees in reliance on Abood. Reliance interests do not come any stronger.”


These sorts of reliance interests — “settled expectations,” as Roberts called them at his confirmation hearing — are an important reason why the court is supposed to respect its own precedent. So when the court hears Friedrichs in January, it will provide Roberts, whose track record of respecting precedents he doesn’t agree with has not been very good in his first decade on the court, a new opportunity to show that he can live up to the respect for precedent he professed before joining the court.


Whether Roberts and the rest of the justices choose to respect the court’s prior decision in Abood will be important not only to working people around the country, but also to the court itself. If the law announced by the court seems to change based simply on who’s sitting on it, it may undermine another promise Roberts made when he was nominated — to keep partisanship out of the court.


At his confirmation hearing, Roberts expressed concern that if courts are seen “as simply an extension of the political process,” it undermines their “independence and integrity.” It’s a concern he’s repeated more than once in the years since.


But if the court ends up overturning Abood by a 5-4 vote that breaks down along ideological lines, it won’t be surprising if some conclude the court is infected by politics, exactly what Roberts doesn’t want.


So as Roberts rings in 2016, he’ll likely be thinking about the very important case the court will be hearing early in the New Year. Let’s hope that he’s also thinking about the resolutions he made when he joined the court and what the consequences would be — for the country, for the court, and for his own legacy — if he doesn’t keep them.


This piece appeared in at least the following additional outlets:


*  The New Bedford (MA) Standard-Times (online)

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